R (On the Application of Unison) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51

R (On the Application of Unison) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51
Student’s Name
Institutional Affiliation
R (On the Application of Unison) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51
Brief Analysis
In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, the appeal case involved fees that the Lord Chancellor imposed in regard to the proceedings of both employment tribunals (“ETs”) as well as the employment appeal tribunal (“EAT”). The appellants argued that these fees were unlawful since they prevented a huge proportion of the public from accessing justice. The government had introduced fees in 2013 for individuals who want to bring cases before ETsin the UK. The law that was being reviewed is the ETs and the EAT Fees Order 2013, SI 2013/1893 (‘the Fees Order’), which Lord Chancellor adopted while exercising his statutory powers. Under such a rule, a single claimant may have to pay between £390 and £1600 for each claim. Unison decided to issue a claim in September 2014 arguing that the Fees Order acted in a discriminatory manner and it prevented many people from accessing justice. The appeal was unanimously allowed and the Supreme Court made a ruling that the Fees Order prevented people from accessing justice and it was therefore unlawful under both the UK and EU law.[supremecourt.uk, ‘Judgment: R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)’ (The Supreme Court 26 July 2017) accessed 10 January 2018] [Christina Lienen, ‘Unison v Lord Chancellor: the things that landmark constitutional cases are made of’ (The Constitutional Unit 28 July 2017) accessed 10 January 2018) 2] [Rachael Zani. Case Comment: R (UNISON) v Lord Chancellor [2017] UKSC 51. (UKSC Blog 17 August 2017) accessed 10 January 2018]
The Facts and Legal Elements
On 28 June 2013, Unison issued a claim that wanted the Court of Appeal to quash the Fees Order since it breached the European Union principles of equivalence and effectiveness. Until the law came into force, a claimant had the capacity of bringing and pursuing ET proceedings and making an EAT appeal without having to pay any fee. Unison challenged the lawfulness of the Fees Order, arguing that it violated the rule that certain statutory rights should not be affected by subordinate legislation that is implemented under the vires of another Act.[Mark Elliott. Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law. (Public Law for Everyone 26 July 2017) ]
The appellants argued that the law breached the Public-Sector Equality Duty that is protected under the Equality Act 2010, and thus discriminatory. This claim had been dismissed by the Divisional Court (Irwin J and Moses LJ) who argued that there was insufficient evidence to sustain the challenge. However, Unison was allowed to appeal by providing new evidence that showed a decline in ET claims. A second claim was issued by the appellant on 23 September 2014 seeking the quashing of the Fees Order on two grounds; the discrimination ground and the effectiveness ground. The claim was dismissed by the Divisional Court (Foskett J and Elias LJ) who said that just like in the First JR, there was no violation of the principles of effectiveness unless there were exorbitant fees that prevented potential litigants. Permission to appeal was granted on both grounds before joining the two appeals.[[2014] EWHC 218 (Admin); [2014] ICR 498, 18] [[2014] EWHC 4198 (Admin); [2015] ICR 390, 18]
Afterwards, the appeals were dismissed by the Court of Appeal. Davis, Moore-Bick and Underhill LJJ held that when a fee was imposed, it would not interfere with the right of people to have an effective access to a tribunal in accordance to the EU law, especially if it is not possible to access the tribunal, in practice.The issue was on the affordability (para 41) and not necessarily on whether fee payment was a sensible way of using money (para 45).[[2015] EWCA Civ 935; [2016] ICR 1, 18]
The Lord Chancellor has been conferred the power by section 42 (1) of the 2007 Act. In this regard, the court is required to consider the provision of the text as well as the statutory interpretations which provide effect to these principles. One of the principles pertains to the constitutional right of accessing justice, which includes accessing courts and tribunals, as held in R v Secretary of State for the Home Department, Ex p Saleem [2001] 1 WLR 443).The second principle was based on the rule that a subordinate legislation should not cut down the specific statutory rights.In subsequent hearings, it was held that fees which litigants pay can be considered as a reasonable and justifiable way of enhancing access to justice and the general efficiency of the justice system. However, the Lord Chancellor does not have the powers of lawfully imposing any arbitrary amount of fees to attain such purposes.[Stephen Bailey, H. Cases, Materials and Commentary on Administrative Law. (London: Sweet & Maxwell, 2005) 232] [[2001] 1 WLR 443).] [supremecourt.uk, 27]
The Supreme Court held that the court fees charged for claims brought to the employment tribunal were unlawful. The Court of Appeal had acknowledged ...